Allens

Native Title

Focus: Federal Court dismisses Widji native title claim

17 August 2012

In brief: A long-standing claim for native title made by the Widji people over prospective mining land surrounding Kalgoorlie has been dismissed by the Federal Court because of concerns over the identity of the claimant group and prejudice being caused to other overlapping native title claims. Organisations that had entered into agreements with the Widji group will now need to reconsider their validity and enforceability. Partner Marshall McKenna (view CV), Lawyer Joe Freeman and Law Graduate Anthony Graham report.

How does it affect you?

  • Organisations that have entered into agreements with the Widji claimant group will need to review the validity and enforceability of those agreements. Difficulties may still arise where agreements purport to survive the failure of a claim, as the identity of the claimant group may be uncertain and, therefore, the identity of the party or parties entitled to the benefits under the agreement may be uncertain too.
  • As the dismissal is not a determination as to native title, organisations with tenement applications, or who are undertaking other future acts in the relevant area, will still be required to comply with relevant native title processes.
  • The decision is indicative of a trend by courts and decision makers toward the quicker resolution of native title claims, and may reflect a stricter attitude towards those that are unlikely to succeed or are being stalled by the conduct of the claimants, particularly where this conduct is causing prejudice to other claim groups.
  • Although no longer directly involved in the native title processes (unless another claim is made), the Widji people are likely to continue to play a role in relation to Aboriginal Heritage Act 1972 (WA) heritage surveys in the relevant area.

Background

The Widji claim was originally lodged in June 1998. It is a claim over an area of approximately 11,200 sq km surrounding Kalgoorlie. The Widji claim overlaps four other claims: the Ngadju claim, the Central East Goldfields claim, the Kalamaia Kabu(d)n claim, and the Strickland/Nudding claim. The Goldfields Land and Sea Council Aboriginal Corporation (the GLSC) is the Native Title Representative Body for the Goldfields region, and represents two of the overlapping claims (Ngadju claim and the Central East Goldfields claim), but not the Widji claim.

The decision

On 31 January 2012, the GLSC filed an application seeking to dismiss the Widji claim under section 84C(1) of the Native Title Act 1993 (Cth) (the NTA). Under that section, a party may apply to have the Federal Court strike out a native title application that fails to comply with certain requirements of the NTA. The GLSC contended that the Widji claim was not properly authorised under s251B of the NTA (and was therefore not compliant with s61), and raised a number of concerns regarding the membership of the Widji claim group, including its inability to be clearly identified.

Section 61 of the NTA sets out the types of native title applications that may be made, and who may make them. Relevantly, for a native title determination application (as the Widji claim was), the applicant must be authorised by all the persons in the native title claim group. Section 251B elaborates on the requirement of authorisation, stating the circumstances in which a person will be authorised by all persons in a native title claim. Unusually, the Widji claimants accepted that their claim was not authorised as required by s251B. However, they sought to rely on provisions of the NTA that provide amendments can continue to be made to determination applications after a strike out application has been filed. The Widji applicant sought an adjournment of the hearing to amend the application, and thus resolve the issues raised against them.

In this case1 , Justice McKerracher disallowed the request for an adjournment to effect an amendment and dismissed the Widji claim, finding that, even were an adjournment granted, the issues relating to the membership of the claim were incapable of being cured. He also considered the lack of progress that had been made in relation to the claim, and drew attention to what he described as a 'history of non-compliance'. His Honour observed that the claim had not progressed in 'any meaningful way' and that this was inconsistent with the objectives set out in the Federal Court of Australia Act 1976 (Cth), for efficient resolution of matters. His Honour further found that the delays involved in the case were prejudicing and impeding the progress of the other overlapping claims (in particular, those that GLSC were involved in).

The judge acknowledged the difficulties that dismissing the claim would cause for the Widji – in particular, the loss of future act income – and that all negotiations and mediations that had been commenced in relation to the claim would be to no effect. However, prejudice to the Widji was ultimately held to be subordinate to the prejudice that had been suffered by other groups as a result of the Widji claim, and the dismissal was allowed.

Consequences of the dismissal

The dismissal of the Widji claim will have consequences for development proponents with interests in the relevant area.

As the dismissal is not a determination of native title, and new claims can still be lodged, tenement applications in the area will still be subject to the NTA's requirements. However, such processes may be resolved more quickly, owing to the reduced number of parties. The overlapping claims (the Ngadju claim, the Central East Goldfields claim, the Kalamaia Kabu(d)n claim and the Strickland/Nudding claim) will also be able to progress their claims, without the impediments that were considered to be caused by the Widji claim.

Very significantly, any agreements that have been entered into between industry groups and the Widji claim group will need to be scrutinised to ensure that they remain both valid and enforceable. Due to the issues as to the identity of the group, there may remain difficulties even where an agreement purports to survive the failure of a claim, as an organisation looking to enforce the agreement against the Widji group may not be able to identify precisely who is entitled to enforce it. Moreover, the agreement may be void for want of sufficient certainty as to the parties.

In line with recent public comments, the decision is indicative of a broader shift in the attitude of the courts and decision makers toward the quicker resolution of native title claims. In bringing effect to this, the courts may be increasingly unlikely to support claims that are not progressing efficiently or are being stalled by the actions of the claimant group, particularly where the conduct is causing prejudice to other local claimant groups.

Finally, for proponents that may be conducting heritage surveys in the area, it is important to note that this decision does not affect the operation of the Aboriginal Heritage Act 1972 (WA), and, as such, the Widji people may still be need to be engaged in relation to surveys.

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Footnotes
  1. Velickovic v State of Western Australia [2012] FCA 782.

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